89 A.D.2d 207 | N.Y. App. Div. | 1982
OPINION OF THE COURT
The question presented on this appeal is whether a child of the parties to a separation agreement has standing, as a third-party beneficiary, to enforce the terms of the agreement insofar as it relates to periodic support payments. Under the facts of this case we hold that she may not.
Defendant made the required fixed payments throughout the intervening years, but never made any escalated payments under the agreement and was never called upon by the wife in any judicial proceeding to make such payments. In February, 1981, while still a high school senior, plaintiff moved from her mother’s house to that of a friend and requested defendant to send the support payments directly to her. Upon learning that plaintiff no longer resided with her mother, defendant concluded that she was emancipated and ceased making any support payments. Plaintiff thereupon learned for the first time of the terms of her parents’ separation agreement, including the escalation clause, and commenced the instant action seeking back payments for the preceding six years, escalated to reflect defendant’s earnings which were now substantially greater than in 1963. She also sought an order directing defendant to make support payments to her as required by the agreement until she reaches the age of 21, marries, dies, or becomes self-supporting.
On cross motions for summary judgment Special Term held that plaintiff could not recover sums due prior to the commencement of the action, but that she may recover sums falling due thereafter, including sums due pursuant to the escalation clause in the agreement. Both parties appeal.
It is familiar law that a contract entered into between two parties may be enforced by a third party if the contracting parties intended the contract for the third party’s direct benefit (Airco Alloys Div., Airco Inc. v Niagara Mohawk Power Corp., 76 AD2d 68, 79; see, generally, 2 Williston, Contracts [3d ed], §§ 347-403; 22 NY Jur 2d, Contracts, §§ 271-281). Where performance is rendered directly to the third party, it is presumed that the contract was for his benefit (Goodman-Marks Assoc. v Westbury Post Assoc., 70 AD2d 145, 148). It is not enough that the contract benefit the third party incidentally; the agreement must express an intent to assume a duty directly to the third party (Resinol v Valentine Dolls, 14 AD2d 853). In ascertaining the rights of an asserted third-party beneficiary, the intention of the promisee is of primary importance, since the promisee procured the promise by furnishing the consideration therefor (Goodman-Marks Assoc. v Westbury Post Assoc., supra).
Applying these principles to separation agreements, New York courts long ago concluded that a child could not enforce the support provisions of the agreement, although it could enforce other provisions, such as a promise to set up a trust fund. The seminal case is Kendall v Kendall (200 App Div 702; 200 App Div 706). InKendall the child, relying on her parents’ separation agreement, sued her father in two separate lawsuits (1) to recover monthly support arrearages (Kendall I) and (2) to require him to set up a trust fund (Kendall II). The Appellate Division held that the child could enforce the trust fund provision, since she was the sole beneficiary of it, but that she could not enforce the support provisions of the agreement. The court reasoned that the support money was payable to the mother, who had discretion in how the money was spent. Unlike the trust fund, which benefited the daughter exclusively, payment of the support money was an obligation running to
In 1966 the Court of Appeals decided what has become the leading case on this issue. In Forman v Forman (17 NY2d 274) the court addressed at length the standing of a child to enforce his parents’ separation agreement. The question of periodic support was not at issue in Forman, since the mother had breached the separation agreement by moving the children out of State. The Court of Appeals noted that the Forman children “concede” that they could not enforce the support provisions. Instead, the Forman children sought specific performance of their father’s promise to make them equal and irrevocable beneficiaries of a life insurance policy in the face amount of $10,000. The Court of Appeals, citing Kendall I (200 App Div 702, supra), noted that the general rule in New York is that ordinarily “children for whose support a provision is made in a separation agreement between their parents, payable to the mother, are usually not able to enforce the agreement directly in an action against their father [since] such a suit ordinarily should be maintained by the mother” (Forman v Forman, supra, p 280). The court then approved
Thus, the rule that comes out of Forman is that in some cases children should be granted third-party beneficiary status, although such status will usually apply to promises other than periodic support. However, the door has been left ajar for them to enforce the “incidental” benefits of periodic support upon a proper showing of status to do so. None has been shown in this case.
Since Forman (supra) was decided, there have been several cases in which children have sought to enforce their parents’ separation agreements. These cases fall into two categories: promises to provide educational expenses (Bethune v Bethune, 96 Misc 2d 507, revd on other grounds 60 AD2d 588, revd on other grounds 46 NY2d 897; Matter of Chilson, 28 AD2d 766; Adams v Adams, 66 Misc 2d 378); and promises to provide for a child in a will or policy of life insurance (Ferro v Bologna, 31 NY2d 30, 35; Matter of Granwell, 20 NY2d 91; Matter of Revson, 86 AD2d 872, 875; Matter of Orvis, 35 AD2d 538, 539 [dissenting opn], affd 28 NY2d 572; Zinga v Zenga [sic], 104 Misc 2d 617; see, also, Matter of Brown, 41 AD2d 275, 279, revd on other
From this may be distilled a simply stated general rule in New York that, barring unusual circumstances, children have no standing to enforce the periodic support provisions of their parents’ separation agreement, although they may enforce other specific provisions of the agreement clearly made exclusively for their benefit, such as a promise to pay college tuition or to make the child a beneficiary of a life insurance policy. The distinction drawn comports with the rules of law applicable to third-party beneficiaries and further is rooted in considerations of public policy designed to promote familial harmony and foster the parent-child relationship. A parent’s contractual promise to pay support is made with a view toward his statutory duty of support. This duty ceases when the adult child refuses to heed the parent’s reasonable restrictions and leaves the custodial home (Matter of Parker v Stage, 43 NY2d 128; Matter of Roe v Doe, 29 NY2d 188).
We have no doubt that circumstances may arise, such as death or disability, or outright refusal of a contracting parent to seek enforcement of periodic support provisions for a child, which would give a child the necessary standing to enforce the agreement. Such circumstances would have to be pleaded and proved and all necessary parties joined in the action (see Bethune v Bethune, supra; Ben Ami v Ben Ami, supra, p 647). In such an event it is to be noted that any waiver of past due periodic support payments effectuated by the failure of the mother to compel enforcement will effectively bind the mother as to such payments (Mat
For the reasons stated herein the order of Special Term should be modified by striking the second and third ordering paragraphs and by dismissing the complaint in toto and as modified affirmed.
Simons, J. P., Hancock, Jr., Boomer and Schnepp, JJ., concur.
Order unanimously modified, and as modified affirmed, without costs, in accordance with opinion by .DoERR, J.